<PAGE>
As filed with the Securities and Exchange Commission on October 22, 1996
Registration No. 33-98738
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------
POST-EFFECTIVE AMENDMENT NO. 1
TO FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------
VION PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
Delaware 13-3671221
(State or other juris- (I.R.S. Employer
diction of incorporation Identification
or organization) Number)
4 Science Park
New Haven, Connecticut 06511
(203) 498-4210
(Address, including zip code, and telephone number, including area
code, of registrant's principal executive offices)
VION PHARMACEUTICALS, INC.
AMENDED AND RESTATED 1993 STOCK OPTION PLAN
(full title of the plan)
------------------
JOHN SPEARS
President and Chief Executive Officer
VION PHARMACEUTICALS, INC.
4 Science Park
New Haven, Connecticut 06511
(203) 498-4210
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
------------------
Copies of all communications, including all communications sent to
the agent for service, should be sent to:
D. TERENCE JONES, ESQ.
Wiggin & Dana
One Century Tower
New Haven, Connecticut 06508
(203) 498-4400
------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------
Proposed Maximum Proposed Maximum Amount of
Title of Securities to be Amount to be Offering Price Per Aggregate Offering Registration Fee
Registered Registered Share(1) Price(1)
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock $.01 par value
per share........... 465,250 shares (2) $3.875 $1,802,843.75 $621.68
===============================================================================================================
</TABLE>
(1) The price is estimated solely for the purpose of calculating the
registration fee pursuant to Rule 457(h)(1). The offering price and fee
are computed based on the average of the high and low prices of the
Common Stock as reported on the NASDAQ Small Cap Market on October 17,
1996.
(2) Does not include 534,750 shares previously registered on October 27, 1995
for which a fee was paid on such filing date.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents, which are on file with the Commission (File
No. 0-26534), are incorporated in this Prospectus by reference and made a part
hereof:
(a) The Company's Annual Report on Form 10-KSB for the year ended
December 31, 1995.
(b) The Company's Quarterly Report on Form 10-QSB for the three month
period ended March 31, 1996.
(c) The Company's Quarterly Report on Form 10-QSB for the three month
period ended June 30, 1996.
(d) The description of the Company's Common Stock contained in Item 1
of the Company's Registration Statement on Form 8-A filed July 31, 1995.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act subsequent to the date of this Registration
Statement and prior to the termination of this offering shall be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the respective dates of filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for all purposes to the
extent that a statement contained in this Registration Statement or any other
subsequently filed document that is also incorporated by reference herein
modifies or supersedes such statement. Any such statements so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
None.
II-1
<PAGE>
Item 6. Indemnification of Directors and Officers
The Certificate of Incorporation and By-Laws of the Company provide
that the Company shall indemnify, to the full extent permitted by the Delaware
General Corporation Law ("GCL") as set forth in Section 145 of the GCL.
In accordance with Section 102(a)(7) of the GCL, the Certificate of
Incorporation of the Company eliminates the personal liability of directors to
the Company or its stockholders for monetary damages for breach of a fiduciary
duty as a director with certain limited exceptions set forth in Section
102(a)(7).
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
Exhibit
No. Description
- --- -----------
4 Vion Pharmaceuticals, Inc. Amended and Restated 1993 Stock Option
Plan, as amended
5 Opinion of Wiggin & Dana
23.1 Consent of Richard A. Eisner & Company, LLP
23.2 Consent of Ernst & Young LLP
23.3 Consent of Wiggin & Dana (to be filed as part of Exhibit 5)
24 Power of Attorney (previously filed)
Item 9. Undertakings
(a) The undersigned registrant will:
(1) File, during any period in which it offers or sells
securities, a post-effective amendment to this
registration statement to:
(i) Include any additional or changed material information on the
plan of distribution.
II-2
<PAGE>
(2) For determining any liability under the Securities Act, treat
each post-effective amendment as a new registration statement
of the securities offered and the offering of the securities at
that time to be the initial bona fide offering.
(3) File a post-effective amendment to remove from registration any
of the securities that remain unsold at the end of the
offering.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and has duly
caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of New Haven, State of
Connecticut, on October 21, 1996.
VION PHARMACEUTICALS, INC.
By: /s/ John A. Spears
-------------------------------------
John A. Spears
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed below by the following
persons in the capacities and on the dates indicated.
Signature Title Date
- --------- ----- ----
/s/ William R. Miller* Chairman of the Board October 21, 1996
- ---------------------------
William R. Miller
/s/ John A. Spears President, Chief Executive October 21, 1996
- --------------------------- Officer and Director
John A. Spears
/s/ Alan C. Sartorelli* Director October 21, 1996
- ---------------------------
Alan C. Sartorelli, Ph.D.
II-4
<PAGE>
Director
- ---------------------------
Michel C. Bergerac
Director
- ---------------------------
Frank T. Cary
/s/ A.E. Cohen* Director October 21, 1996
- ---------------------------
A.E. Cohen
/s/ Michael C. Kent* Director October 21, 1996
- ---------------------------
Michael C. Kent
/s/ E. Donald Shapiro* Director October 21, 1996
- ---------------------------
E. Donald Shapiro
/s/ Walter Wriston* Director October 21, 1996
- ---------------------------
Walter Wriston
Director
- ---------------------------
James L. Ferguson
II-5
<PAGE>
/s/ Thomas E. Klein Vice President - Finance, October 21, 1996
- --------------------------- Chief Financial Officer
Thomas E. Klein and Treasurer (Principal
Financial and Accounting
Officer)
*By: /s/ Thomas E. Klein
----------------------
Thomas E. Klein
Attorney-in-Fact
II-6
<PAGE>
EXHIBIT 4
<PAGE>
VION PHARMACEUTICALS, INC.
AMENDED AND RESTATED
1993 STOCK OPTION PLAN
1. Purpose.
The purpose of this plan (the "Plan") is to secure for Vion
Pharmaceuticals, Inc. (the "Corporation") and its stockholders the benefits
arising from capital stock ownership by employees, officers and directors of,
and consultants or advisors to, the Corporation and its subsidiary corporations
who are expected to contribute to the Corporation's future growth and success.
Except where the context otherwise requires, the term "Corporation" shall
include all present and future subsidiaries of the Corporation as defined in
Sections 424(e) and 424(f) of the Internal Revenue Code of 1986, as amended or
replaced from time to time (the "Code"). Those provisions of the Plan which
make express reference to Section 422 shall apply only to Incentive Stock
Options (as that term is defined in the Plan).
2. Type of Options and Administration.
(a) Types of Options. Options granted pursuant to the Plan shall be
authorized by action of the Board of Directors of the Corporation (or a
Committee designated by the Board of Directors) and may be either incentive
stock options ("Incentive Stock Options") meeting the requirements of Section
422 of the Code or non-statutory options which are not intended to meet the
requirements of Section 422 of the Code.
(b) Administration. The Plan will be administered by the Board of
Directors of the Corporation, whose construction and interpretation of the
terms and provisions of the Plan shall be final and conclusive. The Board of
Directors may in its sole discretion grant options to purchase shares of the
Corporation's Common Stock, $.01 par value per share ("Common Stock") and issue
shares upon exercise of such options as provided in the Plan. The Board shall
have authority, subject to the express provisions of the Plan, to construe the
respective option agreements and the Plan, to prescribe, amend and rescind
rules and regulations relating to the Plan,
<PAGE>
to determine the terms and provisions of the respective option agreements,
which need not be identical, and to make all other determinations in the
judgment of the Board of Directors necessary or desirable for the
administration of the Plan. The Board of Directors may correct any defect or
supply any omission or reconcile any inconsistency in the Plan or in any option
agreement in the manner and to the extent it shall deem expedient to carry the
Plan into effect and it shall be the sole and final judge of such expediency.
No director or person acting pursuant to authority delegated by the Board of
Directors shall be liable for any action or determination under the Plan made
in good faith. The Board of Directors may, to the full extent permitted by or
consistent with applicable laws or regulations (including, without limitation,
applicable state law and Rule 16b-3 promulgated under the Securities Exchange
Act of 1934 (the "Exchange Act"), or any successor rule ("Rule 16b-3")),
delegate any or all of its powers under the Plan to a committee (the
"Committee") appointed by the Board of Directors, and if the Committee is so
appointed all references to the Board of Directors in the Plan shall mean and
relate to such Committee with respect to the powers so delegated.
(c) Applicability of Rule 16b-3. Those provisions of the Plan which make
express reference to Rule 16b-3 shall apply to the Corporation only at such
time as the Corporation's Common Stock is registered under the Exchange Act,
subject to the last sentence of Section 3(b), and then only to such persons as
are required to file reports under Section 16(a) of the Exchange Act (a
"Reporting Person").
3. Eligibility.
(a) General. Options may be granted to persons who are, at the time of
grant, employees, officers or directors of, or consultants or advisors to, the
Corporation; provided, that Incentive Stock Options may only be granted to
individuals who are employees of the Corporation (within the meaning of Section
3401(c) of the Code). A person who has been granted an option may, if he or she
is otherwise eligible, be granted additional options if the Board of Directors
shall so determine.
(b) Grant of Options to Reporting Persons. From and after
the registration of the Common Stock of the Corporation under
the Exchange Act, the selection of a director or an officer
who is a Reporting Person (as the terms "director" and
<PAGE>
"officer" are defined for purposes of Rule 16b-3) as a recipient of an option,
the timing of the option grant, the exercise price of the option and the number
of shares subject to the option shall be determined either (i) by the Board of
Directors, of which all members shall be "disinterested persons" (as
hereinafter defined), or (ii) by a committee consisting of two or more
directors having full authority to act in the matter, each of whom shall be a
"disinterested person." For the purposes of the Plan, a director shall be
deemed to be a "disinterested person" only if such person qualifies as a
"disinterested person" within the meaning of Rule 16b-3, as such term is
interpreted from time to time. If at least two of the members of the Board of
Directors do not qualify as a "disinterested person" within the meaning of Rule
16b-3, as such term is interpreted from time to time, then the granting of
options to officers and directors who are Reporting Persons under the Plan
shall not be determined in accordance with this Section 3(b) but shall be
determined in accordance with the other provisions of the Plan.
(c) Directors' Options. Directors of the Company who are not employees or
beneficial owners of 5% or more of the outstanding Common Stock of the Company
("Eligible Directors") and who are elected to the Board of Directors subsequent
to the date hereof will be granted an option ("Director Option") to purchase
20,000 shares of Common Stock on the date that such person is first elected or
appointed a director (an "Initial Director Option"). Each Eligible Director
will receive an automatic grant of a Director Option to purchase 5,000 shares
of Common Stock on the day immediately following the date of each annual
meeting of stockholders held subsequent to December 31, 1995, as long as such
director is a member of the Board of Directors, and provided that such director
did not receive an Initial Director Option since the previous annual meeting of
stockholders. The exercise price for each share subject to a Director Option
shall be equal to the fair market value of the Common Stock on the date of
grant. Director Options shall become exercisable in four equal annual
installments commencing one year from the date the option is granted and will
expire the earlier of 10 years after the date of grant or 90 days after the
termination of the director's service on the Board. This Section 3(c) shall not
be amended more than once every six months, other than to comport with changes
in the Internal Revenue Code, the Employee Retirement Income Security Act, or
the rules thereunder.
4. Stock Subject to Plan.
<PAGE>
The stock subject to options granted under the Plan shall be shares of
authorized but unissued or reacquired Common Stock. Subject to adjustment as
provided in Section 15 below, the maximum number of shares of Common Stock of
the Corporation which may be issued and sold under the Plan is 1,000,000
shares. If an option granted under the Plan shall expire, terminate or is
cancelled for any reason without having been exercised in full, the unpurchased
shares subject to such option shall again be available for subsequent option
grants under the Plan.
5. Forms of Option Agreements.
As a condition to the grant of an option under the Plan, each recipient of
an option shall execute an option agreement in such form not inconsistent with
the Plan as may be approved by the Board of Directors. Such option agreements
may differ among recipients.
6. Purchase Price.
(a) General. The purchase price per share of stock deliverable upon the
exercise of an option shall be determined by the Board of Directors at the time
of grant of such option; provided, however, that in the case of an Incentive
Stock Option, the exercise price shall not be less than 100% of the Fair Market
Value (as hereinafter defined) of such stock, at the time of grant of such
option, or less than 110% of such Fair Market Value in the case of options
described in Section 11(b). "Fair Market Value" of a share of Common Stock of
the Corporation as of a specified date for the purposes of the Plan shall mean
the closing price of a share of the Common Stock on the principal securities
exchange on which such shares are traded on the day immediately preceding the
date as of which Fair Market Value is being determined, or on the next
preceding date on which such shares are traded if no shares were traded on such
immediately preceding day, or if the shares are not traded on a securities
exchange, Fair Market Value shall be deemed to be the average of the high bid
and low asked prices of the shares in the over-the-counter market on the day
immediately preceding the date as of which Fair Market Value is being
determined or on the next preceding date on which such high bid and low asked
prices were recorded. If the shares are not publicly traded, Fair Market Value
of a share of Common Stock (including in the case of any repurchase of shares,
any distributions with respect thereto which would be repurchased
<PAGE>
with the shares) shall be determined in good faith by the Board of Directors.
In no case shall Fair Market Value be determined with regard to restrictions
other than restrictions which, by their terms, will never lapse.
(b) Payment of Purchase Price. Options granted under the Plan may provide
for the payment of the exercise price by delivery of cash or a check to the
order of the Corporation in an amount equal to the exercise price of such
options, or, to the extent provided in the applicable option agreement, (i) by
delivery to the Corporation of shares of Common Stock of the Corporation having
a Fair Market Value on the date of exercise equal in amount to the exercise
price of the options being exercised, (ii) by any other means (including,
without limitation, by delivery of a promissory note of the optionee payable on
such terms as are specified by the Board of Directors) which the Board of
Directors determines are consistent with the purpose of the Plan and with
applicable laws and regulations (including, without limitation, the provisions
of Rule 16b-3 and Regulation T promulgated by the Federal Reserve Board) or
(iii) by any combination of such methods of payment.
7. Option Period.
Subject to earlier termination as provided in the Plan, each option and
all rights thereunder shall expire on such date as determined by the Board of
Directors and set forth in the applicable option agreement, provided, that such
date shall not be later than (10) ten years after the date on which the option
is granted.
8. Exercise of Options.
Each option granted under the Plan shall be exercisable either in full or
in installments at such time or times and during such period as shall be set
forth in the option agreement evidencing such option, subject to the provisions
of the Plan. No option granted to a Reporting Person for purposes of the
Exchange Act, however, shall be exercisable during the first six months after
the date of grant. Subject to the requirements in the immediately preceding
sentence, if an option is not at the time of grant immediately exercisable, the
Board of Directors may (i) in the agreement evidencing such option, provide for
the acceleration of the exercise date or dates of the subject option upon the
occurrence of specified events, and/or (ii) at any time prior
<PAGE>
to the complete termination of an option, accelerate the exercise date or dates
of such option. All options granted under the Plan will become exercisable in
no fewer than four equal annual installments commencing not earlier than the
first anniversary of the date of grant.
9. Nontransferability of Options.
No option granted under this Plan shall be assignable or otherwise
transferable by the optionee except by will or by the laws of descent and
distribution or pursuant to a qualified domestic relations order as defined in
the Code or Title I of the Employee Retirement Income Security Act, or the
rules thereunder. An option may be exercised during the lifetime of the
optionee only by the optionee. In the event an optionee dies during his
employment by the corporation or any of its subsidiaries, or during the
three-month period following the date of termination of such employment, his
option shall thereafter be exercisable, during the period specified to the full
extent to which such option was exercisable by the optionee at the time of his
death during the periods set forth in Section 10 or 11(d).
10. Effect of Termination of Employment or Other Relationship.
Except as provided in Section 11(d) with respect to Incentive Stock
Options, and subject to the provisions of the Plan, an optionee may exercise an
option at any time within three (3) months following the termination of the
optionee's employment or other relationship with the Corporation or within one
(1) year if such termination was due to the death or disability of the
optionee, but, except in the case of the optionee's death, in no event later
than the expiration date of the Option. If the termination of the optionee's
employment is for cause or is otherwise attributable to a breach by the
optionee of an employment or confidentiality or non-disclosure agreement, the
option shall expire immediately upon such termination. The Board of Directors
shall have the power to determine what constitutes a termination for cause or a
breach of an employment or confidentiality or non- disclosure agreement,
whether an optionee has been terminated for cause or has breached such an
agreement, and the date upon which such termination for cause or breach occurs.
Any such determinations shall be final and conclusive and binding upon the
optionee.
<PAGE>
11. Incentive Stock Options.
Options granted under the Plan which are intended to be Incentive Stock
Options shall be subject to the following additional terms and conditions:
(a) Express Designation. All Incentive Stock Options granted under the
Plan shall, at the time of grant, be specifically designated as such in the
option agreement covering such Incentive Stock Options.
(b) 10% Stockholder. If any employee to whom an Incentive Stock Option is
to be granted under the Plan is, at the time of the grant of such option, the
owner of stock possessing more than 10% of the total combined voting power of
all classes of stock of the Corporation (after taking into account the
attribution of stock ownership rules of Section 424(d) of the Code), then the
following special provisions shall be applicable to the Incentive Stock Option
granted to such individual:
(i) The purchase price per share of the Common Stock subject to such
Incentive Stock Option shall not be less than 110% of the Fair Market
Value of one share of Common Stock at the time of grant; and
(ii) the option exercise period shall not exceed five years from the
date of grant.
(c) Dollar Limitation. For so long as the Code shall so provide, options
granted to any employee under the Plan (and any other incentive stock option
plans of the Corporation) which are intended to constitute Incentive Stock
Options shall not constitute Incentive Stock Options to the extent that such
options, in the aggregate, become exercisable for the first time in any one
calendar year for shares of Common Stock with an aggregate Fair Market Value,
as of the respective date or dates of grant, of more than $100,000.
(d) Termination of Employment, Death or Disability. No Incentive Stock
Option may be exercised unless, at the time of such exercise, the optionee is,
and has been continuously since the date of grant of his or her option,
employed by the Corporation, except that:
(i) an Incentive Stock Option may be exercised within the period of
three months after the date the optionee ceases to be an employee of the
Corporation (or within such lesser period as may be specified in the
applicable
<PAGE>
option agreement), provided, that the agreement with respect to such
option may designate a longer exercise period and that the exercise after
such three-month period shall be treated as the exercise of a
non-statutory option under the Plan;
(ii) if the optionee dies while in the employ of the Corporation, or
within three months after the optionee ceases to be such an employee, the
Incentive Stock Option may be exercised by the person to whom it is
transferred by will or the laws of descent and distribution within the
period of one year after the date of death (or within such lesser period
as may be specified in the applicable option agreement); and
(iii) if the optionee becomes disabled (within the meaning of Section
22(e)(3) of the Code or any successor provisions thereto) while in the
employ of the Corporation, the Incentive Stock Option may be exercised
within the period of one year after the date the optionee ceases to be
such an employee because of such disability (or within such lesser period
as may be specified in the applicable option agreement).
For all purposes of the Plan and any option granted hereunder, "employment"
shall be defined in accordance with the provisions of Section 1.421-7(h) of the
Incoming Tax Regulations (or any successor regulations). Notwithstanding the
foregoing provisions to Incentive Stock Option may be exercised after its
expiration date.
12. Additional Provisions.
(a) Additional Option Provisions. The Board of Directors may, in its sole
discretion, include additional provisions in option agreements covering options
granted under the Plan, including without limitation restrictions on transfer,
repurchase rights, rights of first refusal, commitments to pay cash bonuses, to
make, arrange for or guaranty loans or to transfer other property to optionees
upon exercise of options, or such other provisions as shall be determined by
the Board of Directors; provided, that such additional provisions shall not be
inconsistent with any other term or condition of the Plan and such additional
provisions shall not cause any Incentive Stock Option granted under the Plan to
fail to qualify as an Incentive Stock Option within the meaning of Section 422
of the Code.
<PAGE>
(b) Acceleration, Extension, Etc. The Board of Directors may, in its sole
discretion, (i) accelerate the date or dates on which all or any particular
option or options granted under the Plan may be exercised or (ii) extend the
dates during which all, or any particular, option or options granted under the
Plan may be permitted if it would cause the Plan to fail to comply with Section
422 of the Code or with Rule 16b-3 (if applicable).
13. General Restrictions.
(a) Investment Representations. The Corporation may require any person to
whom an option is granted, as a condition of exercising such option, to give
written assurances in substance and form satisfactory to the Corporation to the
effect that such person is acquiring the Common Stock subject to the option for
his or her own account for investment and not with any present intention of
selling or otherwise distributing the same, and to such other effects as the
Corporation deems necessary or appropriate in order to comply with federal and
applicable state securities laws, or with covenants or representations made by
the Corporation in connection with any public offering of its Common Stock.
(b) Compliance with Securities Law. Each option shall be subject to the
requirement that if, at any time, counsel to the Corporation shall determine
that the listing, registration or qualification of the shares subject to such
option upon any securities exchange or under any state or federal law, or the
consent or approval of any governmental or regulatory body, or that the
disclosure of non-public information or the satisfaction of any other condition
is necessary as a condition of, or in connection with the issuance or purchase
of shares thereunder, such option may not be exercised, in whole or in part,
unless such listing, registration, qualification, consent or approval, or
satisfaction of such condition shall have been effected or obtained on
conditions acceptable to the Board of Directors. Nothing herein shall be deemed
to require the Corporation to apply for or to obtain such listing, registration
or qualification, or to satisfy such condition.
14. Rights as a Stockholder.
The holder of an option shall have no rights as a stockholder with respect
to any shares covered by the option (including, without limitation, any rights
to receive
<PAGE>
dividends or non-cash distributions with respect to such shares) until the date
of issue of a stock certificate to him or her for such shares. No adjustment
shall be made for dividends or other rights for which the record date is prior
to the date such stock certificate is issued.
15. Adjustment Provisions for Recapitalization, Reorganizations and Related
Transactions.
(a) Recapitalization and Related Transactions. If, through or as a result
of any recapitalization, reclassification, stock dividend, stock split, reverse
stock split or other similar transaction, (i) the outstanding shares of Common
Stock are increased, decreased or exchanged for a different number or kind of
shares or other securities of the Corporation, or (ii) additional shares or new
or different shares or other non-cash assets are distributed with respect to
such shares of Common Stock or other securities, an appropriate and
proportionate adjustment shall be made in (x) the maximum number and kind of
shares reserved for issuance under the Plan, (y) the number and kind of shares
or other securities subject to any then outstanding options under the Plan, and
(z) the price for each share subject to any then outstanding options under the
Plan, without changing the aggregate purchase price as to which such options
remain exercisable. Notwithstanding the foregoing, no adjustment shall be made
pursuant to this Section 15 if such adjustment (i) would cause the Plan to fail
to comply with Section 422 of the Code or with Rule 16b- 3 or (ii) would be
considered as the adoption of a new plan requiring stockholder approval.
(b) Reorganization, Merger and Related Transactions. If the Corporation
shall be the surviving corporation in any reorganization, merger or
consolidation of the Corporation with one or more other corporations, any then
outstanding option granted pursuant to the Plan shall pertain to and apply to
the securities to which a holder of the number of shares of Common Stock
subject to such options would have been entitled immediately following such
reorganization, merger, or consolidation, with a corresponding proportionate
adjustment of the purchase price as to which such options may be exercised so
that the aggregate purchase price as to which such options may be exercised
shall be the same as the aggregate purchase price as to which such options may
be exercised for the shares remaining subject to the options immediately prior
to such reorganization, merger, or consolidation.
<PAGE>
(c) Board Authority to Make Adjustments. Any adjustments made under this
Section 15 will be made by the Board of Directors, whose determination as to
what adjustments, if any, will be made and the extent thereof will be final,
binding and conclusive. No fractional shares will be issued under the Plan on
account of any such adjustments.
16. Merger, Consolidation, Asset Sale, Liquidation, Etc.
(a) General. In the event of a consolidation or merger in which the
Corporation is not the surviving corporation, or sale of all or substantially
all of the assets of the Corporation in which outstanding shares of Common
Stock are exchanged for securities, cash or other property of any other
corporation or business entity or in the event of a liquidation of the
Corporation (collectively, a "Corporate Transaction"), the Board of Directors
of the Corporation, or the board of directors of any corporation assuming the
obligations of the Corporation, may, in its discretion, take any one or more of
the following actions, as to outstanding options: (i) provide that such options
shall be assumed, or equivalent options shall be substituted, by the acquiring
or succeeding corporation (or an affiliate thereof), provided that any such
options substituted for Incentive Stock Options shall meet the requirements of
Section 424(a) of the Code, (ii) upon written notice to the optionees, provide
that all unexercised options will terminate immediately prior to the
consummation of such transaction unless exercised by the optionee within a
specified period following the date of such notice, (iii) in the event of a
Corporate Transaction under the terms of which holders of the Common Stock of
the Corporation will receive upon consummation thereof a cash payment for each
share surrendered in the Corporate Transaction (the "Transaction Price"), make
or provide for a cash payment to the optionees equal to the difference between
(A) the Transaction Price times the number of shares of Common Stock subject to
such outstanding options (to the extent then exercisable at prices not in
excess of the Transaction Price) and (B) the aggregate exercise price of all
such outstanding options in exchange for the termination of such options, and
(iv) provide that all or any outstanding options shall become exercisable in
full immediately prior to such event.
(b) Substitute Options. The Corporation may grant options under the Plan
in substitution for options held by employees of another corporation who become
employees of the Corporation, or a subsidiary of the Corporation, as the
<PAGE>
result of a merger or consolidation of the employing corporation with the
Corporation or a subsidiary of the Corporation, or as a result of the
acquisition by the Corporation, or one of its subsidiaries, of property or
stock of the employing corporation. The Corporation may direct that substitute
options be granted on such terms and conditions as the Board of Directors
considers appropriate in the circumstances.
17. No Special Employment Rights.
Nothing contained in the Plan or in any option shall confer upon any
optionee any right with respect to the continuation of his or her employment by
the Corporation or interfere in any way with the right of the Corporation at
any time to terminate such employment or to increase or decrease the
compensation of the optionee.
18. Other Employee Benefits.
Except as to plans which by their terms include such amounts as
compensation, the amount of any compensation deemed to be received by an
employee as a result of the exercise of an option or the sale of shares
received upon such exercise will not constitute compensation with respect to
which any other employee benefits of such employee are determined, including,
without limitation, benefits under any bonus, pension, profit-sharing, life
insurance or salary continuation plan, except as otherwise specifically
determined by the Board of Directors.
19. Amendment of the Plan.
(a) The Board of Directors may at any time, and from time to time, modify
or amend the Plan in any respect, except that if at any time the approval of
the stockholders of the Corporation is required under Section 422 of the Code
or any successor provision with respect to Incentive Stock Options, or under
Rule 16b-3, the Board of Directors may not effect such modification or
amendment without such approval.
(b) The termination or any modification or amendment of the Plan shall
not, without the consent of an optionee, affect his or her rights under an
option previously granted to him or her. With the consent of the optionee
affected, the Board of Directors may amend outstanding option
<PAGE>
agreements in a manner not inconsistent with the Plan. The Board of Directors
shall have the right to amend or modify (i) the terms and provisions of the
Plan and of any outstanding Incentive Stock Options granted under the Plan to
the extent necessary to qualify any or all such options for such favorable
federal income tax treatment (including deferral of taxation upon exercise) as
may be afforded incentive stock options under Section 422 of the Code and (ii)
the terms and provisions of the Plan and of any outstanding option to the
extent necessary to ensure the qualification of the Plan under Rule 16b-3.
20. Withholding.
(a) The Corporation shall have the right to deduct from payments of any
kind otherwise due to the optionee any federal, state or local taxes of any
kind required by law to be withheld with respect to any shares issued upon
exercise of options under the Plan. Subject to the prior approval of the
Corporation, which may be withheld by the Corporation in its sole discretion,
the optionee may elect to satisfy such obligations, in whole or in part, (i) by
causing the Corporation to withhold shares of Common Stock otherwise issuable
pursuant to the exercise of an option or (ii) by delivering to the Corporation
shares of Common Stock already owned by the optionee. The shares so delivered
or withheld shall have a Fair Market Value equal to such withholding obligation
as of the date that the amount of tax to be withheld is to be determined. An
optionee who has made an election pursuant to this Section 20(a) may only
satisfy his or her withholding obligation with shares of Common Stock which are
not subject to any repurchase, forfeiture, unfulfilled vesting or other similar
requirements.
(b) The acceptance of shares of Common Stock upon exercise of an Incentive
Stock Option shall constitute an agreement by the optionee (i) to notify the
Corporation if any or all of such shares are disposed of by the optionee within
two years from the date the option was granted or within one year from the date
the shares were transferred to the optionee pursuant to the exercise of the
option, and (ii) if required by law, to remit to the Corporation, at the time
of and in the case of any such disposition, an amount sufficient to satisfy the
Corporation's federal, state and local withholding tax obligations with respect
to such disposition, whether or not, as to both (i) and (ii), the optionee is
in the employ of the Corporation at the time of such disposition.
<PAGE>
(c) Notwithstanding the foregoing, in the case of a Reporting Person whose
options have been granted in accordance with the provisions of Section 3(b)
herein, no election to use shares for the payment of withholding taxes shall be
effective unless made in compliance with any applicable requirements of Rule
16b-3.
21. Cancellation and New Grant of Options, Etc.
The Board of Directors shall have the authority to effect, at any time and
from time to time, with the consent of the affected optionees, (i) the
cancellation of any or all outstanding options under the Plan and the grant in
substitution therefor of new options under the Plan covering the same or
different numbers of shares of Common Stock and having an option exercise price
per share which may be lower or higher than the exercise price per share of the
cancelled options or (ii) the amendment of the terms of any and all outstanding
options under the Plan to provide an option exercise price per share which is
higher or lower than the then current exercise price per share of such
outstanding options.
22. Effective Date and Duration of the Plan.
(a) Effective Date. The Plan shall become effective when adopted by the
Board of Directors, but no Incentive Stock Option granted under the Plan shall
become exercisable unless and until the Plan shall have been approved by the
Corporation's stockholders. If such stockholder approval is not obtained within
twelve (12) months after the date of the Board's adoption of the Plan, no
options previously granted under the Plan shall be deemed to be Incentive Stock
Options and no Incentive Stock Options shall be granted thereafter. Amendments
to the Plan not requiring stockholder approval shall become effective when
adopted by the Board of Directors; amendments requiring stockholder approval
(as provided in Section 19) shall become effective when adopted by the Board of
Directors, but no Incentive Stock Option granted after the date of such
amendment shall become exercisable (to the extent that such amendment to the
Plan was required to enable the Corporation to grant such Incentive Stock
Option to a particular optionee) unless and until such amendment shall have
been approved by the Corporation's stockholders. If such stockholder approval
is not obtained within twelve (12) months of the Board's adoption of such
amendment, any Incentive Stock Options
<PAGE>
granted on or after the date of such amendment shall terminate to the extent
that such amendment to the Plan was required to enable the Corporation to grant
such option to a particular optionee. Subject to this limitation, options may
be granted under the Plan at any time after the effective date and before the
date fixed for termination of the Plan.
(b) Termination. Unless sooner terminated in accordance with Section 16,
the Plan shall terminate upon the earlier of (i) the close of business on the
day next preceding the tenth anniversary of the date of is adoption by the
Board of Directors, or (ii) the date on which all shares available for issuance
under the Plan shall have been issued pursuant to the exercise or cancellation
of options granted under the Plan. If the date of termination is determined
under (i) above, then options outstanding on such date shall continue to have
force and effect in accordance with the provisions of the instruments
evidencing such options.
23. Provision for Foreign Participants.
The Board of Directors may, without amending the Plan, modify awards or
options granted to participants who are foreign nationals or employed outside
the United States to recognize differences in laws, rules, regulations or
customs of such foreign jurisdictions with respect to tax, securities,
currency, employee benefit or other matters.
24. Governing Law.
The provisions of this Plan shall be governed and construed in accordance
with the laws of the State of New York without regard to the principles of
conflicts of laws.
Originally Adopted by
the Board of Directors
on April 15, 1993
<PAGE>
EXHIBIT 5
<PAGE>
WIGGIN & DANA
One Century Tower
New Haven, CT 06508
(203) 498-4400
October 21, 1996
Vion Pharmaceuticals, Inc.
4 Science Park
New Haven, CT 06511
Ladies and Gentlemen:
We refer to Post-Effective Amendment No. 1 to the Registration Statement
on Form S-8 (the "Registration Statement") filed with the Securities and
Exchange Commission under the Securities Act of 1933, as amended (the "Act"),
by Vion Pharmaceuticals, Inc. (the "Company"), relating to an additional
465,250 shares of the Company's Common Stock, $.01 par value per share, in
addition to the 534,750 shares previously registered (collectively, the
"Shares"), to be issued under the Company's Amended and Restated 1993 Stock
Option Plan (the "Plan").
As counsel for the Company, we have examined such corporate records, other
documents, and such questions of law as we have considered necessary or
appropriate for the purposes of this opinion and, upon the basis of such
examination, advise you that in our opinion, the Shares being registered
pursuant to the Registration Statement, when issued and paid for under the Plan
in accordance with the terms of the Plan, will be, when so issued and paid for,
duly authorized, legally issued, fully paid, and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. This consent is not to be construed as an admission
that we are a person whose consent is required to be filed with the
Registration Statement under the provisions of the Act.
Very truly yours,
/s/ WIGGIN & DANA
<PAGE>
EXHIBIT 23.1
<PAGE>
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors and Stockholders
OncoRx, Inc.
We consent to the inclusion in this Amendment No. 1 to the Registration
Statement on Form S-8 of our report dated March 6, 1995, (with respect to
Note 6, March 30, 1995 and with respect to Notes 1, 2 and 7, April 20, 1995) on
our audit of the financial statements of OncoRx, Inc. (a development stage
company) for the period from May 1, 1994 (commencement of operations) through
December 31, 1994.
/s/ Richard A. Eisner & Company, LLP
New York, New York
October 16, 1996
<PAGE>
EXHIBIT 23.2
<PAGE>
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Amendment No. 1 to Form S-8 No. 33-98738) pertaining to the Vion
Pharmaceuticals, Inc. Amended and Restated 1993 Stock Option Plan of our report
dated February 15, 1996, with respect to the consolidated financial statements
of Vion Pharmaceuticals Inc. (formerly OncoRx, Inc.) included in its Annual
Report (Form 10-KSB) for the year ended December 31, 1995, filed with the
Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Hartford, Connecticut
October 16, 1996
